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Tupe Model Answer Notes

LPC Law Notes > Employment Law Notes

This is an extract of our Tupe Model Answer document, which we sell as part of our Employment Law Notes collection written by the top tier of University Of Law students.

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TUPE Model Answer (Employment) IS THERE A RELEVAN T TRANSFE R??

Business transfer Reg 3(1)(a): o Two limb test:
? Is there an economic entity comprising of an organised group of resources?
? This is a question of fact for the Tribunal who must apply the Cheeseman factors:
? Consider whether the business has its own workforce, premises, assets, equipment, customer base, goodwill etc.
? Apply briefly
? Has that entity transferred?
? Spijkers states that the decisive criterion is whether the entity retains its identity post-transfer; 7 factors in deciding this (should be considered in conjunction): 1) The type of undertaking or business - is the business labour intensive or dependent on its assets? E.g. window fitting would be labour intensive as a lot of importance is attributed to the skills of the workforce 2) The transfer of tangible assets - have a significant amount of assets transferred?
3) The value of intangible assets (goodwill) - goodwill, skills and experience of workers 4) Whether the majority of staff are being taken by the new employer - ECM v Cox states that it is not fundamental that the majority of staff transfer - it must however be a significant number 5) The transfer of the circle of customers - is customer list transferred?
6) The degree of similarity between activities before and after the transfer - is similar business being carried on?
7) The duration of any interruptions in those activities - is the interruption minimal?
Service provision change: o Three types:
? Contracting out Reg 3(1)(b)(i) - Where activities cease to be carried out in-house and an outside contractor comes in to carry out those activities
? Second generation contracting Reg 3(1)(b)(ii) - Where a contractor is carrying out activities and the organisation changes the provider of those activities to a different contractor
? Contracting in-house Reg 3(1)(b)(iii) - Where a contractor is carrying out activities and the organisation decided to run

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